Federal District Court Opinions

DEJESUS v. ALLSTATE INS. CO., (S.D.N.Y. 2001) EDWIN DeJESUS, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. 96 Civ. 6073 (TPG). United States District Court, S.D. New York. August 20, 2001

OPINION

THOMAS P. GRIESA, United States District Judge

Plaintiff, a Hispanic male, sues his former employer
Allstate Insurance Company claiming race discrimination and
retaliation. Plaintiff is proceeding pro se. This case was
originally assigned to Judge Martin. On October 24, 1997
Allstate made a motion before Judge Martin for summary
judgment dismissing the complaint, which was granted in an
opinion dated May 11, 1998 and a memorandum dated June 2,
1998. Subsequent to the dismissal, Judge Martin recused
himself due to a conflict of interest that had existed at
the time he decided the motion for summary judgment. On
June 8, 1999 the case was reassigned. On April 24, 2001 the
undersigned granted plaintiffs motion to vacate the
dismissal.

This court, having now made a new and independent review of
the record to determine how the motion for summary judgment
should be decided, has determined that the motion should be
granted and that the action should be dismissed.

Facts

During the period 1986 through 1991 plaintiff worked in New
York City as a Neighborhood Office Agent (“NOA”) for
defendant Allstate Insurance Company. Under the NOA
program, agents may select the site of their own offices,
subject to the approval of Allstate, and select their own
staff. The NOA pays his or her own office rent and the
salaries of support staff, as well as some other operating
expenses. An NOA can receive an Office Expense Allowance
(“OEA”), the amount of which is calculated based on the
number of new policies and renewals the agent handles. It
is unclear how much of the agent’s operating expenses are
typically reimbursed through the OEA, but it is clear that
the NOA is largely responsible for managing office
expenses.

Plaintiff located his first Allstate office at 89th Street
and 3rd Avenue, Manhattan, in 1986. In late 1988, plaintiff
sought and received permission to move his office to 77th
Street and 2nd Avenue.

At some point during his employment with Allstate,
plaintiff sought to hire his wife as another NOA to be
located in his office. Plaintiffs wife had already been
approved to do some clerical work in plaintiffs office.
Plaintiff claims that Allstate rejected his request to hire
his wife, but approved the request of Randy Moccia, a
Caucasian NOA, to hire his own wife. Allstate claims that
plaintiffs wife never formally applied for the position.

In 1989 Allstate became aware that plaintiff was
experiencing financial difficulties in his business. Among
other things, Allstate was notified by several temporary
employment agencies, through whom plaintiff had hired his
support staff, that plaintiff had large unpaid balances.
Plaintiff also had unpaid telephone bills. Plaintiffs
supervisors met with plaintiff on several occasions,
encouraged him to resolve his debts and reiterated that the
debts were plaintiffs responsibility and would not be paid
by Allstate. By early January 1990 plaintiff had failed to
settle his debts and Allstate placed him on “Job in
Jeopardy” (“JIJ”) status.

In February 1991 plaintiff decided relocate to more
affordable office space in an effort to try to resolve his
financial difficulties. Allstate assisted plaintiff to some
degree. Plaintiff was interested in two office locations
between 77th and 79th Streets on Lexington Avenue.
Plaintiff proposed the two locations to Julie Durney, his
Agency Manager, who informed plaintiff that the locations
were probably too close to the office of Randy Moccia,
located between 85th and 86th streets on Lexington Avenue.
Nevertheless, Durney agreed to seek authorization from
“regional management,” which was ultimately responsible for
approving NOA office locations. Regional management advised
Durney that the locations were unacceptable due to their
close proximity (about 7 or 8 blocks) to Moccia’s office.
Durney informed plaintiff of this decision.

On May 31, 1991 plaintiffs lease on his 77th Street office
expired and he vacated the office. Because plaintiff had
not secured a lease on new office space, he did not report
to work. On several occasions, Allstate contacted plaintiff
to inquire regarding his absence. Plaintiff stated that he
was experiencing medical and emotional trouble and also
that Allstate was not cooperating with him in his search
for office space. Plaintiff never leased a new office and
did not appear for work again, with the exception of his
attendance at a meeting on September 3, 1991.

Beginning in June of 1991 Allstate had opened an internal
investigation into plaintiffs business operations based on
a number of complaints from customers who reported that
premium payments made to plaintiff had not been credited to
their policies. The internal investigation revealed several
instances of ethical impropriety including an instance in
which plaintiff commingled his personal funds with
policyholder premium payments and an instance in which
plaintiff forged a customer’s signature on an application.
Plaintiff admits some of these occurrences but denies
others. Plaintiff was terminated effective December 18,
1991.

Plaintiff claims that the decision to deny his relocation
request was based on his race, not on the proximity of his
desired location to Moccia’ s office. He claims that in May
1987, while he was occupying his office at 89th Street and
3rd Avenue, Moccia was permitted to move his office to a
location at 84th Street and Park Avenue that was 7 1/2
blocks from plaintiffs office. In addition, plaintiff
claims that in 1990, while he was occupying his office at
77th Street and 2nd Avenue, Moccia was permitted to move
his office to Lexington Avenue and 85th Street, which was 9
1/2 blocks from plaintiffs office.

Plaintiff also claims that following his termination, a
Caucasian NOA, Robert Isacsen, requested and received
permission to relocate his office to the area that
plaintiff had vacated. Isacsen has submitted an affidavit
in opposition to the motion for summary judgment which
states: “I had no reason to believe based upon my
conversation with [Michael Keil, who is ultimately
responsible for approving relocation requests] that I would
not be allowed to move anywhere within the 10021 zip code,
including Lexington Avenue and 77th Street. . . .”

Plaintiff claims that Allstate has a “ten block rule,”
under which a request by an NOA to move his or her office
to within ten blocks of an existing Allstate office is
denied. Plaintiff claims that this rule was applied to his
relocation request but not to the relocation requests of
the Caucasian NOAs, Isacsen and Moccia. Allstate denies the
existence of a ten block rule.

Allstate submitted the affidavit of Michael Kiel, who was a
Territorial Sales Manager at Allstate during the relevant
time, and dealt with plaintiffs 1991 relocation request.
According to Kiel, Allstate decides whether to approve the
request of an NOA to locate an office in a particular area
based on four factors which are outlined in the NOA manual.
These are:

(1) Suitability for the Allstate image;

(2) Proximity to your current book of business;

(3) Proximity to existing company locations;

(4) Future market penetration potential.

Neighborhood Office Agent Manual at 6.

Allstate denies that Isacsen was given more favorable
treatment than that accorded to plaintiff. Kiel’s affidavit
states: “I can state unequivocally that I never approved a
request that I permit Isacsen to relocate to Lexington
Avenue between 77th Street and 79th Street.” Isacsen’ s own
affidavit shows that he never actually moved into the area,
and that he decided to remain in the office that he occupied
at the time.

As to Moccia, Kiel’s affidavit describes how he applied the
factors in the NOA manual to plaintiffs relocation request,
as well as to the relocation requests of Moccia. Acording
to Kid, the crucial difference between these requests was
the impact of traffic flow. Kiel’s affidavit stated that
plaintiff requested relocation to an area within a short
distance from an existing Allstate office on the same
avenue. Moccia’s requests for relocation, in contrast,
placed Moccia’ s office in close proximity to another
Allstate office, but on different avenues. Kiel explained
that because vehicular and pedestrian traffic tended to
move along avenues rather than on side streets, two agents
located within a short distance from one another on a
single avenue would tend to target “the same segment of the
same sector of the market”. By contrast, Kiel explained,
“an Allstate office located only a few blocks away from a
second Allstate office on the same or a nearby side street
would, in all likelihood, not be pursuing (or at least
exposed to) the same potential customers.”

In the form of complaint provided by the court to pro se
litigants, plaintiff has checked “Retaliation” as one form
of discriminatory conduct he complains of. However, there
are no further allegations in the complaint on this
subject. At his deposition, however, plaintiff suggested
that he was terminated because he “began to complain” and
became “an unhappy camper.” Plaintiff was asked whether he
could identify any specific complaints that he made to
Allstate, and he stated that he could not. However, in a
subsequent affidavit plaintiff stated: “[u]pon reviewing my
paperwork, I was able to recollect a time in which I did in
fact charge Allstate with discriminatory practices. I
expressed my feelings to Mike Kiel by phone and [alluded]
to it in my letter to Kiel dated 5/21/91.” The May 21, 1991
letter is a list of plaintiffs grievances against Allstate,
none of which relate to race discrimination. The letter was
submitted as an exhibit with plaintiffs opposition to this
motion. Plaintiff has submitted nothing further on the
retaliation claim.

Plaintiffs complaint also contains a redlining claim.
Redlining is the practice of declining to underwrite
insurance for persons within a particular geographic area.
The only allegation in the complaint on this subject is
that Allstate refused to consider the relocation of his
office to a predominantly African-American and Hispanic
neighborhood in East Harlem. No further particulars or
elaboration is given.

On June 11, 1992 plaintiff filed an employment
discrimination charge with the New York State Division of
Human Rights (“DHR”). The charge was sent by the DHR to the
United States Equal Employment Opportunity Commission
(“EEOC”) for “dual filing.” The charge alleged that
plaintiff, as a Hispanic, had been discriminated against on
the basis of his race. He alleged that Allstate had
discriminated against him by not allowing him to hire his
Italian wife “for assignment to his office” and by not
approving his request to relocate his office. The DHR and
the EEOC dismissed the charge on November 8, 1995 and April
17, 1996, respectively. It was found, after investigation
by each agency, that there was no probable cause to believe
that Allstate had engaged in unlawful discriminatory
practices. The charge filed by plaintiff contained no claim
of retaliation or redlining.

Discussion

Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P 56(c). All ambiguities must be resolved and all
inferences must be drawn in favor of the non-moving party.
Eastway Constr. Corp. v. City of New York, 762 F.2d 243,
249 (2d Cir. 1985). When no rational jury could find in
favor of the non-moving party because the evidence to
support its case is so slight, there is no issue of
material fact and a grant of summary judgment is proper.
Dister v. Continental Group. Inc., 859 F.2d 1108, 1114 (2d
Cir. 1988). A litigant may not defeat a motion for summary
judgment solely through “unsupported assertions” or
conjecture. Goenaga v. March of Dimes Birth Defects Fund,
51 F.3d 14, 18 (2d Cir. 1995).

A court must be especially cautious about granting summary
judgment in a discrimination case in which the employer’s
intent is at issue. Gallo v. Prudential Residential
Services. L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). “Because
writings supporting a claim of intentional discrimination
are rarely, if ever, found among an employer’s corporate
papers, affidavits and depositions must be carefully
scrutinized for circumstantial proof which, if believed,
would show discrimination.” Id.

Race Discrimination Claims

Courts apply a three-stage test when evaluating race
discrimination claims such as plaintiffs. First, the
plaintiff has the burden of proving by a preponderance of
the evidence a prima facie case of discrimination. Second,
if the plaintiff succeeds in proving the prima facie case,
the burden shifts to the defendant to articulate some
legitimate, nondiscriminatory reason for the employee’s
discharge. Third, should the defendant carry this burden,
the plaintiff must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were
a pretext for discrimination. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Plaintiff claims that defendant’s denial of his relocation
request and refusal to hire his wife were discriminatory
actions taken against him. Plaintiff may make out a prima
facie case of discrimination with respect to such tangible
employment actions by alleging: (1) his membership in a
protected class, (2) that he requested and was qualified for
the job benefit at issue, (3) that the job benefit was
denied or that he was subjected to some other adverse
employment action, and (4) that the denial or other adverse
action occurred under circumstances giving rise to an
inference of discrimination. Gregory v. Daly, 243 F.3d 687,
695 (2d Cir. 2001). The plaintiffs burden at the prima
facie stage is de minimis. Chambers v. TRM Copy Centers
Corp., 43 F.3d 29, 37 (2d Cir. 1994).

It is undisputed that plaintiff belongs to a protected
class and that he was subjected to adverse employment
actions.

Also, plaintiff has shown that he was “qualified for” the
“benefit” in question in the sense that he was entitled to
have some appropriate office location approved. The real
issue, at the prima facie case stage, is whether the denial
of his request to relocate to one of the two offices he
found on Lexington Avenue between 77th and 79th Streets
occurred under circumstances giving rise to an inference of
racial discrimination. Plaintiff claims that Allstate used
the “ten block rule” to deny his relocation request, but
did not apply it to the relocation requests of several
Caucasian NOAs. Plaintiff has not submitted any evidence
that demonstrates the existence of the “ten block rule.”

Plaintiff lacks personal knowledge of how his and other
relocation requests are processed, so he may not testify to
the application of a “ten block rule.” Allstate asserts
that it does not have a “ten block rule,” and that each
request for relocation is analyzed under the four factors
set forth in the NOA manual. The Kid affidavit described in
substantial detail Allstate’s analysis of relocation
requests. The affidavit described how plaintiffs requested
relocation was different from the relocation requests of
Moccia and Isacsen both in terms of market conditions and
the impact of traffic flow on offices in close proximity on
a single Avenue. There is no evidence before the court that
plaintiff was entitled to the specific office location he
requested or that Allstate handled his request in a
racially discriminatory fashion.

Plaintiff asserts that Allstate approved the relocation of
a Caucasian NOA, Robert Isacsen, to the exact location for
which plaintiffs relocation request was denied. Plaintiff
submitted Isacsen’s affidavit in support of this point.
However, Isacsen’s affidavit states only that he asked Kiel
whether he would be allowed to move into plaintiffs market
since plaintiff had been terminated, and that he “had no
reason to believe based upon my conversation with Mr. Kiel
that I would not be allowed to move anywhere within the
10021 zip code, including Lexington Avenue and 77th
Street.” The affidavit does not state that Isacsen
requested the specific locations that plaintiff requested
and was approved. Isacsen ultimately did not move into
plaintiffs former area. Isacsen’s affidavit does nothing to
support plaintiffs assertion that he was entitled to move
to the particular office locations he requested or that he
was denied these office locations based on his race. This
conclusion is consistent with the assertions in the Kid
affidavit regarding Isacsen.

Similarly, there is no evidence that plaintiffs wife was
qualified for employment as an NOA in plaintiffs office and
there is no evidence that Allstate refused to hire her
under circumstances giving rise to an inference that she
(an Italian) was denied employment because of plaintiff
being Hispanic. Plaintiff has submitted almost no evidence
on this point. There is no evidence to show that Ms.
DeJesus applied for a position with Allstate, or that she
was qualified for such position. There is no evidence,
other than plaintiffs bald assertion, to show that Moccia’s
wife was similarly or less qualified than plaintiffs wife.
There is no evidence that plaintiffs own race was a factor
in Allstate’s refusal to hire plaintiffs wife.

A prima facie case of race discrimination does not exist
and there is no showing of a triable issue of fact.

Retaliation and Redlining Claims

In employment discrimination cases, including retaliation
cases, a plaintiff who fails to file a timely charge with
the EEOC is barred from asserting claims of discrimination
in federal court. Butts v. City of New York Dep’t of Hous.
Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). A
district court only has jurisdiction over those claims
which were actually included in the EEOC charge or claims
that are “reasonably related” to those allegations. Id. A
claim is considered “reasonably related” when it: (1) is
within the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge; (2)
alleges conduct which would constitute retaliation for
filing a timely EEOC charge; and (3) alleges conduct which
would constitute a further incident of discrimination
perpetrated in precisely the same manner as what is alleged
in the EEOC charge. Id. at 1402-03. The purpose of the
requirement of primary resort to the EEOC is to provide
notice to the employer and to encourage concihation and
voluntary compliance. Snell v. Suffolk County, 782 F.2d
1094, 1101 (2d Cir. 1986).

Plaintiffs EEOC charge contained allegations of race
discrimination only, and these were limited to Allstate’s
refusal to hire plaintiffs wife and Allstate’s denial of
plaintiffs request to relocate his office. The EEOC charge
did not allege retaliation or redlining.

Nor are the claims of retaliation and redlining reasonably
related to the racial discrimination claims. These claims
are so fragmentary, as described earlier, that there could
be no basis for saying that they were within the scope of
the EEOC investigation. The claims do not allege conduct
that could be construed as retaliation for plaintiffs filing
of the EEOC charge, since, to the extent any retaliatory or
redlining conduct is alleged, it occurred before plaintiff
was terminated by Allstate, and this was several months
before the filing of the charge with the EEOC. Finally, the
claims of retaliation and redlining do not allege conduct
perpetrated in the same manner as what was alleged in the
EEOC charge.

Because the retaliation claim and the redlining claim were
neither contained in the EEOC charge nor reasonably related
to claims in the EEOC charge, this court lacks subject
matter jurisdiction over these claims, and they must be
dismissed.

Conclusion

For the reasons stated above, the complaint should be
dismissed.

SO ORDERED.